A recent case in the SA Court of Appeal has clarified a common misconception as to what is required when a person against whom an intervention order has been made with their consent, later applies to have that order revoked.

A Court may grant an intervention order if it is reasonable to suspect that the person against whom the order is sought will, without intervention, commit an act of abuse against another person and the issuing of the order is appropriate in the circumstances.  When an order is made, the Court must include a period following which the defendant can apply to revoke the order, which can’t be less than 12 months after it is issued.

Very often a person against whom an order is sought will choose not to spend time and money challenging it and will agree to consent to the order.  Having done so, the person will be subject to the order for the minimum period of 12 months (or such longer period as is specified in the order).

The law states that when an application is made to revoke an Intervention Order, the Court can dismiss that application without hearing evidence if it is satisfied that the application is frivolous or vexatious, or if there has been no substantial change in the relevant circumstances since the order was issued.

The problem that this recent case has highlighted, is that when the person chooses to apply to have the order revoked, the Courts have often taken the incorrect view that since there has been no change the application can’t succeed and must be dismissed.  As the Court of Appeal concluded, there is a distinction in the approach to be adopted when the order was made by consent rather than as the result of a contested hearing.

In this case, the Intervention order was made in 2017 in favour of the woman’s daughter and granddaughter.  Rather than challenging the application, the woman consented to the terms of the order without admitting the allegations on which it was based.

Five years after the Order was first made, the woman applied for it to be revoked.  She claimed that the original Intervention Order was ‘decided on incorrect material.’  In other words, her argument was that the order should not have been granted in the first place.  On that basis, she conceded that there had been no substantial change in circumstances since the Order was made.

As is usually the case in such applications, the woman asserted that she had no direct contact with the protected persons since 2013 and she wanted the Order revoked because she was at risk of being wrongly accused of breaching the conditions.  For someone to have an intervention order over their head always carries the risk that there might be an allegation that they have breached the order.  This can result in them being arrested and even refused bail by the police.

In this case there had in fact been two allegations of breaching the Order over the years.  The first charge was withdrawn, but the woman had pleaded guilty to a breach in 2017 when she sent a Facebook birthday message to her granddaughter.

As the women conceded that nothing had changed since the original Order was made, the Magistrate dismissed her application.  The woman then appealed that decision and the case was ultimately heard by the Court of Appeal.

The Court of Appeal noted that the Magistrate had dismissed the woman’s application to revoke the intervention order on the basis that she had conceded that nothing had changed since the order was originally made.  It held that while that course of action might be appropriate in cases where the order was made based on evidence in the course of a contested hearing (or trial) it was very different when the person has simply consented to the order without admitting the allegations made against them.  In such a case, if the person applying to revoke the order is challenging the underlying reasons upon which it was sought in the first place, then it is not appropriate for a Magistrate to simply dismiss the application without properly considering the appropriate criterion.

The Court of Appeal noted that the Magistrate had failed to consider the ultimate question for revocation, namely whether as at the date the application to revoke the order was made, it was reasonable to suspect that the defendant [the woman] would, without intervention, commit an act of abuse against the protected persons such that the continuation of the order is therefore appropriate in the circumstances.

Very many people who have consented to an intervention order out of convenience without admitting the allegations that formed the basis for the order find that it has created many more difficulties for them than they expected.  Depending on the terms, an intervention order can severely limit a person’s ability to travel freely, visit family members, to work where they choose and even drive along certain roads.  Through wrong advice they have concluded that there is no point in seeking to have the order revoked because there hasn’t been a ‘change in circumstances’, but as this case shows, they still have the right to challenge the allegations made against them and apply to have the order revoked.

Websters Lawyers have experienced criminal lawyers who can assist in defending an intervention order, applying for such an order or making an application for an order to be revoked.

Somerville v Somerville [2023] SASCA 54